9 should be the magic number for the Cons-Court (High Courts) judges

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FB_IMG_1472905735111By Nsambila Mbolela

The 3-2 decision handed down on 5/9/2016 by the Constitution Court (Cons-Court) to halt hearing HH’s petition aggrieved by allegations of election rigging, did indeed make a nice or nasty dinner conversation for Zambian’s at home(ZAH) and Zambians living (ZLA). For PF supporters the news was like the annunciation-birth of the Messiah, whereas for UPND the news was like the crucifixion of the messiah. Whether PF or UPND, faith life is full of joyful and sorrowful mysteries, so is political life. Like my friend reminded me that, “judges have ruled-whether their decisions were flawed is another issue-those aggrieved (HH) if they don’t agree should appeal. As for me and possibly you too, we all know that in any legal system under the sun, there are moments when poor innocent people go to jail and guilty wealthy murderers get acquitted. Folks there are no perfect judicial decisions. You just have to learn to live with them and do your best to move one with life.

In the most recent elections, voting patterns have tended to be regional especially in rural areas. Even in the 11/8/2016 elections, it was sad to see no elected PF MP in Southern province and no elected UPND MP in Northern province. This should be a cause for concern. To me democratic elections are supposed to balance geographical representations in parliament. Just like it is equally important to have women in positions of power, it is equally important to have UPND in rural PF strongholds and vice versa. If not, we are not forming a one Zambia one nation. Rather we are forming regional tribal clans (MPs) in the name of democracy.

One clear thing that emerged from the Cons-Court is that on their own the courts can’t enforce their own decisions. The courts need the executive branch for support. In 1787, when USA was framing its constitution, Alexander Hamilton wrote that, “the judiciary has no influence over either the sword or the purse”. It may truly be said to have neither FORCE nor WILL, but merely judgment.” The Court, Hamilton said, should be “the least dangerous” branch of government.

To expand and diversify legal opinions on issues of esteem importance like the application and interpretation of the constitution in moments of national dispute, I am hereby proposing to President elect Lungu to propose a ‘Judicial Reorganization Bill’, whereby all higher courts would increase the number of judges from 5 to 9. If we believe in the necessity to have the Cons-Court as the paramount court to hear and settle cases as the Court of last resort of upholding the rule of law, then we need to expand the number of judges. Even the bible says, “a nation perishes through a lack of guidance, but there is safety in the abundance of counselors (judges)”, Proverbs 11:14.

Since the constitution affords The president the sole power to nominate high court judges, it is important to expand and diversify the composition of the judges, through regional/geographical backgrounds to encourage judges to debate and challenge one another’s perspectives. 9 is such a magic number to foster such contrarian debates.

Considering that the Cons-Court has handed down this decision (on 5/9/2016) to move forward with president elect Lungu and to dununa reverse HH’s grievances, this decision will shape Zambia’s political history for better or force worse, from HH’s civil rights to election issues to the powers of economics and government. We should all care and acknowledge that we need more than 5 judges to undertake the enormous task of administering justice and fairness as the Court of last resort, with full-fledged final authority to interpret constitutional matters and uphold or reverse decisions made by other judges.

Expanding the number of sitting judges to 9, coupled with individuals with a great deal mixture of regional, religious, gender, educational and various tribal backgrounds willing to debate and challenge each other’s legal assumptions and perspectives, should foster the judicial environment to take its responsibilities seriously.

Clearly, waiting for the Cons-Court decision, on a Friday at 23:59hrs is not an assuring thing to the quality of the final product of all judicial deliberations-DECISION. In my view, the number 9 if composed of highly competent judges willing to challenge each other’s legal assumptions, will be the vital key differentiating factor to the success of our judicial system.


10 Responses to 9 should be the magic number for the Cons-Court (High Courts) judges

  1. Pingback: 9 should be the magic number for the Cons-Court (High Courts) judges - Latest Africa News, Breaking News, Hot and Daily News

  2. People have problems accepting the judgment because the petition really never took off.the learned judges never guided both parties. Some wounds never heal.these elections were not just about hh and ecl but the entire citizens. There are honest and dishonest citizens from both camps who really wanted to know the truth if any. Trust me the voter turn out you saw during last election won’t be same in the next election. I wish the case was heard to convince losers that truly they lost. Without that some of their supporters will permanently hate the winners and the one Zambia one nation will remain a mare slogan.

    September 6, 2016 at 8:09 am

  3. No winer no loser no president in zambia.

    September 6, 2016 at 8:32 am

  4. Please be on the look out for my proposed solution to the quagmire on this matter in response to Nsambila Mbolela’s articulate proposal which I agree with. I have additional issues.

    Dr. Munyonzwe Hamalengwa
    September 6, 2016 at 8:43 am

    • Article 127 of the Constitution provides for a Constitutional Court with a total of 13 judges including the President and Deputy President. Lungu deliberately appointed less (most of whom he could control) to achieve precisely what has transpired. The question is whether the court was even properly constituted when the full quota of judges had not been appointed.

      September 6, 2016 at 9:08 am

  5. Well. We need to go back to the basics. The guiding document for the petition is the constitution. We need to clearly understand what it says so that we don’t analyse intellectually without the basis.

    The constitution says the petition shall be heard and determined within 14 days. Therefore, what type of ruling can judges make that is outside the requirements of the constitution. As things are now the petition has not been determined.

    September 6, 2016 at 8:55 am

    • Article 103(2) requires the Constitutional Court to “hear” (not DECIDE) an election petition within 14 days of the filing of the petition. In terms of Article 269 the 14 day period excludes the day of filing.

      September 6, 2016 at 9:17 am

  6. Two of those judges will lose their jobs imidiately while the three that ruled in favour of Lungu will die one by one.

    This is exactly what dictators do to consolidate their power hold and avoid black mail.

    All those like Emmanuel Mwamba now fighting to come to UK or US as as high commissioner and ambassador will soon disappear if they conyinue boasting that they put Lungu in power.

    As for Lungu very soon he will confess on his sick bed that he was forced to rigg these elections not his wish.

    As for my HH its time reflect whether its worth it to continue this democratic fight when you know that all the judges are compromised. My advice is he should stay quiet and observe from the side how bad things will get. Mwanawasa was brought back from inactive politics when things got really bad.

    HH and the UPND team will be last one to laugh because things are going to get tough. No creditor will negotiate a good deal with these PF thugs.

    PF will very soon start raiding people ‘s bank accounts for money! So if you have huge money in the bank please open an off shore account in SA and put your money there.

    What I have always said has come to pass

    September 6, 2016 at 9:03 am

  7. We may have political differences but one thing all of us need to do is to defend the constitution. What we notice that the judges who are the custodian of the constitution are raping it. Partly becoz of lack of competence. Integrity, objectivity, courage. This is worsened by corruption, taking the executive as their bosses, paymasters.

    September 6, 2016 at 9:07 am

  8. The ConCourt appointment of judges was properly done. I don’t think the president consulted anybody. LAZ and the Parliament would have been used to scrutinize the proposed names. I know the judges were scrutinized when they were first appointed high court judges. But the appointment to such a high level court, the judges should have been subject to a lot of scrutiny by LAZ and the Parliament, besides senior constitutional and other lawyers like John Sangwa, Eric Silwamba, Musa Mwenye, Sakwiba Sikota and some judges of the Supreme Court would have been appointed to the ConCourt to match the status of the supremacy of the court. But what did we get the payback sort of arrangement. The judges you have on the ConCourt bench are not qualified enough to run a court of the last resort in the land. In fact the entire supreme court bench should have been moved to the ConCourt and then appoint new supreme court judges. The whole circus was done to benefit the ruling party and the president in particular. What does the future hold? The mediocrity we have chosen to embrace because these judges cannot be removed easily. The president has an option to appoint six more senior judges from both the supreme court and the legal fraternity to strengthen the ConCourt.

    Prince Mande
    September 6, 2016 at 10:04 am

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